The Champion

August 2012 , Page 51

Access to The Champion archive is restricted to NACDL members. However, this page and others deemed to serve the public interest - as opposed to a narrower benefit to the criminal defense profession - are left unprotected for access by all interested persons.

My First Look at the Military Commissions Hearing of al-Nashiri: A Somber Wake-Up Call (Military Commissions Perspective)

Three days of pretrial motions had come to a close. I was in Maryland at Fort Meade, and had just observed my first Guantánamo military commission hearing. As I walked out of the sparsely filled viewing theater, I was left to sort through myriad thoughts. At times, I had felt shocked, confused, empathetic, embarrassed, and even angry. In May, I had completed my first year of law school, and although my legal knowledge was limited to the basics, even I was surprised by the gross due process violations and flagrant disrespect for judicial decorum that I had witnessed.

Shrouded in the illusion of “fairness, transparency, and justice,” the military commissions were created to subject individuals designated as “unlawful enemy combatants” to a new system with little guiding historical precedent, especially in prosecuting a capital case. The Office of Military Commissions’ Convening Authority, a supposedly neutral party composed of one person appointed by the Pentagon, has an inordinate amount of power to decide which cases are referred to trial, whether defendants will face the death penalty, and even which military officers will make up the jury pool. This is a lot of discretionary power for one person.

The Convening Authority referred charges against Abd al-Rahim Hussayn Muhammad al-Nashiri that allege, among other things, that al-Nashiri was the mastermind behind the attack on the USS Cole in Yemen that killed 17 sailors in 2000. The defense team faces an uphill battle as it argues for al-Nashiri’s life in a system in which the odds overwhelmingly favor the prosecution.

The hearings were filled with mostly procedural matters that would rarely come up in a federal civilian court, such as the specific instructions on how a judge is to carry out jury selection. A conviction and death sentence in the military commissions requires a unanimous decision by at least 12 jurors. In a court-martial, 14 of 15 voting jurors are normally empaneled to ensure the number of jurors will not fall below quorum, yet in this case the Convening Authority has given specific instructions to allow for a selection of alternate jurors who would not vote unless the jury was reduced to fewer than 12. The Convening Authority is essentially keeping the number of voting jurors to an absolute minimum, and defense counsel Lt. Cdr. Reyes said, “This is a panel that numerically favors a death sentence.”

Even more shocking was the blatant disparity in resources afforded to the defense team. The government had added prosecutor Joanna Baltes, a Justice Department Classified Information Procedures Act (CIPA) expert, to aid in litigation regarding looming issues related to classified information and national security. The Convening Authority, once again wielding extraordinary power, denied funding the defense’s hiring of Nancy Hollander as a CIPA litigation expert. In response, Judge Pohl suggested to the defense that a CIPA expert was unnecessary since defense team members are expected to master any subject matter related to their litigation. As if the necessity for a CIPA expert was not already clear enough, Judge Pohl himself admitted that he was not an expert in CIPA and sought clarification from Baltes concerning related law. The defense was unable to refute, as it did not have its own CIPA expert. Judge Pohl reserved judgment on this issue but it seems highly unlikely he will allow the defense to have a CIPA expert.

The defense also requested, and was denied by the Convening Authority, the funding to hire Dr. Elizabeth Loftus, a cognitive psychologist and expert in human memory, specifically in the field of memory degradation over time. This expertise would be particularly relevant in this case since the alleged crimes happened so long ago. Judge Pohl simply stated that the defense could sufficiently show the imperfections in human memory through cross-examination. The prosecution can consult with Justice Department experts without having to ask for permission from the Convening Authority, and the defense’s lack of resources, and ultimately lack of knowledge, will make defending al-Nashiri unduly burdensome.

A closed session was held to discuss several defense motions. The defense sought discovery to learn more about al-Nashiri’s treatment in clandestine CIA custody prior to his transfer to military custody at Guantánamo in 2006.1 A 2009 CIA inspector general’s report gave details on how al-Nashiri was one of three Guantánamo Bay inmates subjected to “enhanced interrogation” techniques such as waterboarding, mock executions, and threats with a gun and power drill.2 Since this information is readily available to members of the public with Internet access, the national security concerns related to this seem less legitimate. In the military commission, a defendant is not automatically allowed access to all of the evidence against him, and the officers of the court are allowed to consider classified evidence that the defendant may not even be aware of, giving the defendant no opportunity to refute the evidence and defend himself.

To increase transparency of the trial, civilian defense lawyer Richard Kammen, an expert in defending capital cases, urged Judge Pohl to permit open circuit TV broadcasting of the trial so that media outlets had access to the same 45-second delayed live feed that was being broadcasted to Fort Meade. The Secretary of Defense has issued a ruling that additional transmissions will not be permitted, and the question arose regarding whether a judge has the authority to supersede that rule. Regardless, Kammen made a compelling argument that there should be more media access since the public knows very little about the military commissions, which are procedurally quite different from the federal or state courts with which most members of the public have come to be familiar. It is highly unlikely that the judge will rule to change the status quo of the closed circuit broadcasting to Fort Meade, especially when any member of the public can go to Fort Meade to watch the trial, although this access is not made known to the public.

The court purportedly prides itself on “fairness, transparency, and justice.” Thus, it seems it would be in the best interest of the military court to allow the defense attorneys the opportunity to adequately represent al-Nashiri to the best of their abilities, so as not to lose credibility in a capital case with a seemingly predetermined outcome. This can only be done on a level playing field.

As law students, we learn about the integrity of the legal system and are instilled with a sense of pride in pursuing one of the noblest of all professions, a profession that should uphold the hallmarks of our justice system. It is a telling blow that at least six military lawyers serving as prosecutors in the military commissions have quit or requested transfers due to the inherently unjust nature of the court proceedings. As Kammen poignantly said, history will judge the decisions made at the proceedings.